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Stories from SlateHow Far Have We Come Since 1952?http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2016/11/the_supreme_court_took_on_1950s_gender_roles_the_day_after_donald_trump.html
<p>We’re far enough past the days of sex-based <a href="https://www.oyez.org/cases/1972/71-1694">benefits laws</a>, <a href="https://www.oyez.org/cases/1976/75-628">alcohol laws</a>, and <a href="https://www.oyez.org/cases/1981/81-406">public-university admissions requirements</a> that the Supreme Court no longer hears a lot of cases about laws that expressly apply different rules to women as opposed to men. But on the day after our nation voted down the first female major-party presidential nominee in favor of a man who has made both <a href="http://www.cnn.com/2016/09/27/politics/alicia-machado-donald-trump-2016-election-anderson-cooper/">a business</a> and <a href="https://www.washingtonpost.com/politics/trump-recorded-having-extremely-lewd-conversation-about-women-in-2005/2016/10/07/3b9ce776-8cb4-11e6-bf8a-3d26847eeed4_story.html">a pastime</a> out of objectifying women, the Supreme Court heard a case that concerns a provision of federal immigration law that explicitly treats men and women differently. As the country prepares for the presidency of a man whose views on gender roles seem to have been fixed in the 1950s, Wednesday’s Supreme Court case, <em>Lynch v. Morales-Santana</em>, provides a small but meaningful snapshot of how sex-based laws written in that very era are viewed by the branch of government most likely to provide a check on the new president’s power.</p>
<p>What’s at issue is a provision of immigration law, written in 1940 and revised in 1952, that treats unmarried mothers differently from unmarried fathers in determining when they can pass their U.S. citizenship on to their kids: A mother passes her U.S. citizenship if she has lived in the U.S. for one year. By contrast, a father seeking to pass on citizenship must have lived in the U.S. for <em>10</em> years, including five after the age of 14.</p>
<p>Applying this law, the government claims in Wednesday’s case that Luis Morales-Santana, who was born in the Dominican Republic in 1962 to an unmarried Dominican mother and American father, did not receive his father’s U.S. citizenship because his father left the United States shortly before his 19<sup>th</sup> birthday and accordingly missed (by just three weeks) the requirement that he live in the U.S. for five years after the age of 14. (For children born after 1986, Congress changed the law to narrow—but not eliminate—the discrepancy in treatment between mothers and fathers.)</p>
<p>Morales-Santana, seeking to establish citizenship to avoid deportation, charges that the law unconstitutionally discriminates based on sex because if you switched the sexes of his parents, Morales-Santana would be a U.S. citizen.</p>
<p>If this distinction strikes you as arbitrary, you’re not alone. After a subdued start to the argument (justices apparently are no more immune to post-election hangovers than the rest of us), Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan take turns coming up with different ways to tell the government’s lawyer, Deputy Solicitor General Edwin S. Kneedler, that they think the law is silly.</p>
<p>The government claims that Congress wanted to ensure that the parent has sufficient connection to the United States to justify letting the child inherit citizenship. The four liberal Justices aren’t buying it. “Why aren’t men and women who are parents similarly situated with respect to their affiliation, their attachment to U.S. values?” Justice Ginsburg wants to know, opining further that “there’s no reason to think a man has less of a sense of U.S. belonging than a woman.” Kneedler pivots to a discussion of one way men and women are differently situated: the mother’s presence at birth. Justices Kagan and Sotomayor are unimpressed. Justice Breyer is visibly frustrated. Kneedler launches into a comparison of <em>unmarried</em> fathers to <em>married</em> fathers, but the justices keep returning to the basic distinction that the law makes between unmarried <em>fathers</em> and unmarried <em>mothers</em>.</p>
<p>What’s really behind the law, Morales-Santana’s attorney Stephen A. Broome tells the court, are stereotypes about gender roles in parenting. Morales-Santana’s <a href="http://www.scotusblog.com/wp-content/uploads/2016/09/15-1191-bs.pdf">brief</a> pointed to statements of executive officials around the time of the law’s enactment opining that “almost invariably it is the mother who concerns herself” with the child and referring to the mother as the child’s “natural guardian.” Justice Ginsburg shares this concern, noting that at the time that this law’s relevant provisions were enacted, “laws just put mothers and children not born of the marriage together, and separated fathers from their children.” When Kneedler retakes the podium for rebuttal, Justice Breyer lectures him: “Today there are lots of fathers who <em>do</em> look after their children.”</p>
<p>The last time the court decided a case concerning differential treatment of men and women in federal immigration law, in the 2001 case of <em>Nguyen v. INS</em>, <a href="https://www.oyez.org/cases/2000/99-2071">a sharply divided court ruled for the government</a>—with both the women then on the court, Justices Sandra Day O’Connor and Ginsburg, in dissent. In <em>Nguyen</em>, the issue was whether Congress could require unmarried fathers to take extra steps (not required of mothers) to establish parentage in order to pass on their U.S. citizenship to their children.</p>
<p>Kneedler brings up <em>Nguyen</em> three times in the first five minutes, but Justice Anthony Kennedy waves it away as concerning a different question: The logic of <em>Nguyen</em> is that everyone knows the mother is the mother because she had to have been there at birth; not so for the father. By contrast, the question of how long it takes a person to established a connection to the United States is about values, not biology.</p>
<p>A lot has happened regarding women and the law since 2001. The court in 2007 read a federal employment discrimination statute as <a href="https://www.oyez.org/cases/2006/05-1074">barring the claims</a> of Goodyear employee Lilly Ledbetter, who suffered 19 years of pay discrimination based on sex, because Ledbetter filed suit too late; Congress rebuked the court by <a href="https://www.eeoc.gov/eeoc/publications/brochure-equal_pay_and_ledbetter_act.cfm">amending the law</a>. There are three female justices now, and as Dahlia Lithwick has noted, their voices have become increasingly powerful, <a href="http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2016/03/in_oral_arguments_for_the_texas_abortion_case_the_three_female_justices.html">particularly when issues affecting women</a> (such as abortion) are at stake. Indeed, earlier this year, the court <a href="https://www.oyez.org/cases/2015/15-274">struck down two Texas abortion-clinic regulations</a> in the biggest win for abortion-rights supporters since 1992.</p>
<p>The court faced the exact issue in Wednesday’s case in 2011—and <a href="http://www.scotusblog.com/case-files/cases/flores-villar-v-united-states/">couldn’t resolve it</a>, splitting 4–4 because Justice Kagan was recused. A reader of tea leaves might say that the prior deadlock bodes well for Morales-Santana: If there were four votes on his side without Justice Kagan, then her presence should get him to five, as she makes clear early in the argument that she doesn’t think Congress had a good reason for the sex-based distinction.</p>
<p>We can assume that the three other progressive justices voted against the law in 2011; who was the mystery fourth vote? Justice Kennedy turns in a fair audition for the role, first expressing skepticism about the relevance of the 2001 <em>Nguyen</em> case and then focusing the rest of his questions on the issue of what the court should do if it strikes down the classification—“level up” unmarried fathers to the same favorable treatment of unmarried mothers or “level down” unmarried mothers to the stricter requirements applicable to unmarried fathers?</p>
<p>Here the terrain gets rockier for Broome, who can’t seem to satisfy Chief Justice John Roberts’ questions about the proper focus of the remedy analysis. But as the justices bear down on the question of remedy, it seems increasingly clear that most of them have accepted that it’s unconstitutional to treat mothers and fathers differently as to the length of U.S. residency required to pass on citizenship. The only question appears to be how the court will implement that decision.</p>
<p>In light of the legal and cultural evolution on sex discrimination in the past 15 years, it’s not surprising that the court is taking a hard look at sexism and stereotyping in a mid-20<sup>th</sup>-century immigration law. What remains to be seen is whether, after this week’s election, that issue continues to be a priority for the other branches of government.</p>
<p><em>Disclosure: Scott Michelman is senior staff attorney at the American Civil Liberties Union of the Nation’s Capital. The national ACLU filed an amicus brief supporting Morales-Santana. The author was not involved in the writing of that brief. The views stated here are the author’s own.</em></p>Thu, 10 Nov 2016 18:44:11 GMThttp://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2016/11/the_supreme_court_took_on_1950s_gender_roles_the_day_after_donald_trump.htmlScott Michelman2016-11-10T18:44:11ZThe Supreme Court took on the gender roles of the 1950s on the day after Donald Trump’s election.News and PoliticsThe Supreme Court Took on 1950s Gender Roles on the Day After Donald Trump’s Election100161110009supreme courtscotusScott MichelmanSupreme Court Dispatcheshttp://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2016/11/the_supreme_court_took_on_1950s_gender_roles_the_day_after_donald_trump.htmlfalsefalsefalseThe Supreme Court took on 1950s gender roles the day after Donald Trump’s election:This is the one branch of government that might check this man.Yuri Gripas/ReutersThe U.S. Supreme Court in Washington, D.C., on Oct. 3.Tase Thy Neighbor?http://www.slate.com/articles/news_and_politics/jurisprudence/2013/09/a_scotus_short_lister_has_no_problem_with_police_tasing_does_that_matter.html
<p>Given the current trend toward nominating Supreme Court justices young enough to serve on the court for several decades (the last four appointees have been in their early to mid-50s), some federal judges find their way onto the Supreme Court short list the moment they are appointed to the federal appellate bench. One such frequently mentioned fast-track candidate is Judge Jacqueline Nguyen, appointed by President Obama to the 9th Circuit Court of Appeals last year. Nguyen is the first Vietnamese-American and the first Asian-American woman to serve on a federal appeals court. Prominent legal observers <a href="http://www.newyorker.com/online/blogs/comment/2013/04/sri-srinivasan-dc-circuit-nominee-supreme-court.html">Jeff Toobin</a> and <a href="http://www.scotusblog.com/2012/02/the-court-in-a-second-obama-term/">Tom Goldstein</a> have already speculated about her Supreme Court potential.<em></em></p>
<p>But the rapid rise of midcareer jurists introduces potential pitfalls: Their few years at the courts of appeals can be subject to closer scrutiny than judges with longer records. Just one symbolic opinion that angers the base can be more costly, raising questions about whether the jurist is someone the president—and the political forces he needs to rally behind his nominees—can “trust.” In her 2007 book <em><a href="http://www.amazon.com/dp/0143113046/?tag=slatmaga-20">Supreme Conflict</a></em>, CBS’s Jan Crawford Greenburg discusses the thinking inside the Bush White House during the lead-up to the nominations of then-Judges John Roberts and Samuel Alito to the Supreme Court. Greenburg reports that, in White House lawyers’ reviews of potential candidates’ jurisprudence, “with some [candidates], it took one bad opinion to knock them out.” In Greenburg’s telling, <a href="http://balkin.blogspot.com/2007/02/why-did-bush-administration-pass-over.html">analyzed here by Balkinization</a>, one judge who was scratched in this manner was the highly-touted short-lister Michael W. McConnell, formerly of the 10th Circuit.<br /> <br /> Now consider Judge Nguyen’s opinion in the recent <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/06/12-35121.pdf">case of Donald Blondin</a>, who found himself on the wrong end of a nasty police tasing simply for inquiring about the well being of his neighbor.</p>
<p>One evening in May 2008, the police were called to Blondin’s neighborhood in western Washington State to investigate a possible suicide attempt by an elderly man in his car, which was parked next to his house. The police coaxed the man out of his car and then, when he refused to comply with commands he show his hands, they tased him. They tased him again while he was lying on the ground. His neighbor Donald and Donald's wife Kristi heard the commotion and came outside. Donald was in a T-shirt, shorts, and slippers. He called out, &quot;What are you doing to Jack?&quot; Though he was more than 35 feet away, one officer ordered him to get back while another ordered him to stop. Perhaps confused by the contradictory commands, Donald either took a step or two back and stopped or simply stopped. He was (according to a witness) “frozen with fear” and made no threatening movements.</p>
<p>An officer warned Donald that he would be tased if he did not retreat further, but before he had even finished giving the warning, he tased Donald anyway. The officer deployed the Taser in “dart” mode, which means the Taser “propel[s] a pair of ‘probes’—aluminum darts tipped with stainless steel barbs connected to the [Taser] by insulated wires—toward the target at a rate of over 160 feet per second.&quot; At that point the dart delivered a 1,200-volt charge that “knock[ed] [Donald] down and caus[ed] excruciating pain, paralysis, and loss of muscle control.” The firing officer then threatened Kristi with the Taser too, and for good measure ordered Donald handcuffed and arrested for obstruction. Predictably, the charges were later dropped. Donald and Kristi filed a civil rights suit for damages, and earlier this month, the 9th Circuit held that the claim could go forward.<br /> <br /> But Judge Nguyen disagreed in a lengthy dissent, arguing that the tasing was reasonable because Donald “interjected himself into a rapidly-evolving, highly volatile scene.” Nguyen found the scene so “volatile” in part because the officers had been warned that Jack—the man attempting suicide—might be armed, even though there was no link between <em>Donald</em> and any weapon, and even though by the time Donald had arrived on the scene, Jack was on the ground, having been tased twice himself.<br /> <br /> What to make of Judge Nguyen’s siding with an arguably trigger-happy officer who treated neighborly concern as an act of aggression warranting the use of substantial force? Her dissent has already received <a href="http://www.courthousenews.com/2013/09/06/60930.htm">some general news coverage</a> as well as some <a href="http://calapp.blogspot.com/2013/09/gravelet-blondin-v-shelton-9th-cir-sept.html">not-exactly-flattering attention</a> in the blogosphere. In her year’s worth of federal appellate decisions, though, Judge Nguyen’s dissent appears to be an outlier in terms of its potential to raise liberal hackles. Since joining the 9th Circuit, Judge Nguyen has voted to <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/09/11-55904.pdf">uphold a city program to punish irresponsible landlords</a>, to <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/06/11-56846%20web.pdf">require a new sentence for a juvenile offender who received 254 years for a non-homicide offense</a>, and <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2013/04/10/11-15655.pdf">to reinstate a false arrest claim against law enforcement</a>.</p>
<p>But there’s something about a judge’s lone dissent that reveals more than you might glean from the act of joining other judges’ opinions. And as opinions go, this one is pretty blunt. According to Nguyen, in permitting Donald's claim to proceed, the majority “goes badly astray” by “attempting to minimize the precariousness of the situation” and “discounting the danger” to the officers of a concerned but unarmed and motionless man more than 35 feet away. Donald “was not simply a passive bystander” according to Judge Nguyen because “he came out of his house in slippers, demanding to know what the officers were ‘doing to Jack.’ ” (Judge Nguyen does not explain why the officers should reasonably have felt threatened by either Donald’s slippers, or his question.)</p>
<p>Happily for Judge Nguyen, there is some recent precedent for a former prosecutor to reach the high court despite a pro-law enforcement opinion at the court of appeals. As a judge on the court of appeals, Sonia Sotomayor once <a href="http://caselaw.findlaw.com/us-2nd-circuit/1361965.html">vacated</a> a jury award in favor of a stranded truck driver who sued the police for false arrest and malicious prosecution after he got into a heated dispute with a pay-phone user (it was the ’90s). The driver wanted to use the phone because his truck had broken down and created a hazard; the pay-phone user responded by pulling a gun, and the driver ended up throwing the phone at him. The police arrested the trucker, not the gun-wielding pay-phone user (himself an off-duty cop). The trucker sued and the jury awarded him damages for his arrest, which had cost him his job along with tens of thousands of dollars in legal fees. Then-Judge Sotomayor wrote the opinion overturning the verdict, reasoning that once the trucker threw the phone, he had committed assault and could be arrested. The case did not prevent her nomination to the Supreme Court. In fact, as <a href="http://www.slate.com/articles/news_and_politics/jurisprudence/2009/05/sotomayor_sides_with_the_cops.html">Emily Bazelon has suggested</a>, the decision may have helped her by demonstrating her ability to arrive at conservative outcomes. Along similar lines, perhaps Judge Nguyen’s dissent here would be a political asset, reassuring conservatives that she isn’t reflectively anti-cop.</p>
<p>There are, however, a couple of differences. First, Justice Sotomayor had well over a decade to build up a track record on the court of appeals. Currently there are four Supreme Court justices who may be approaching retirement age. If Judge Nguyen is on the Obama short list, this dissent will have little time to blend into a larger body of jurisprudence. And second, the Sotomayor opinion demonstrated her ability to reach across the aisle, judicially speaking; here, by contrast, Judge Nguyen was dissenting from a majority opinion that included one Clinton appointee and one appointee of the second President Bush, so it was the majority, not the dissent, that appears judicially “bipartisan.”</p>
<p>Ultimately, although there is no indication Judge Nguyen had politics in mind when she penned this Taser dissent, whether the case makes a difference to Judge Nguyen’s prospects will depend on the reactions and judgments of a small group of political actors, and whether one opinion can matter as much to the current administration as it did under Bush. Will Obama White House lawyers view Judge Nguyen’s dissent as indicative of even-handedness to law enforcement and therefore consider her a safer political pick than others on the short list? Or will the President’s advisors question whether Judge Nguyen satisfies his <a href="http://articles.washingtonpost.com/2009-05-13/politics/36870772_1_supreme-court-law-professor-alito">empathy test</a>, insofar as this dissent seems to find slippers more threatening than Tasers?</p>Wed, 18 Sep 2013 22:30:44 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2013/09/a_scotus_short_lister_has_no_problem_with_police_tasing_does_that_matter.htmlScott Michelman2013-09-18T22:30:44ZWill a single dissenting opinion end Judge Jacqueline Nguyen’s Supreme Court aspirations?News and PoliticsA SCOTUS Short-Lister Seemingly Has No Problem With Police Tasing. Does That Matter?100130918014supreme courtScott MichelmanJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2013/09/a_scotus_short_lister_has_no_problem_with_police_tasing_does_that_matter.htmlfalsefalsefalseA SCOTUS Short-Lister Seemingly Has No Problem With Police Tasing. Does That Matter?A SCOTUS Short-Lister Seemingly Has No Problem With Police Tasing. Does That Matter?Photo by Ethan Miller/Getty ImagesLAS VEGAS - JANUARY 08: Taser International Inc. sales manager Doug Cote demonstrates the company's newly launched Taser C2 at the Venetian during the 2007 International Consumer Electronics Show January 8, 2007 in Las Vegas, Nevada. The new stun gun is smaller than earlier models and has a non-threatening grip, according to Stephen Tuttle, vice president of communications. Two models, one that will sell reportedly for USD 299 and one with a laser pointer feature and color options, USD 349, will be available in April 2007. The world's largest consumer technology tradeshow runs through January 11 and features 2,700 exhibitors showing off their latest products and services to more than 150,000 attendees. (Photo by Ethan Miller/Getty Images)